Sale of Common Parts in a Co-ownership: The General Meeting Constitutes a Contract of Sale (Cass. 3e civ., 22 Sept. 2010)

Imagine: you have been a tenant for ten years in a building in Dax, and the co-ownership decides at a general meeting (GM) to sell you a common courtyard adjacent to your flat. The GM votes 'yes' unanimously, you pay a deposit… and then the managing agent tells you that some co-owners are withdrawing, that the sale is cancelled. What should you do? This kind of situation, I have seen it happen in my office in Mont-de-Marsan far more often than one might think. The question every owner or tenant asks is: can a GM decision really constitute a contract of sale? The answer, decided by the Court of Cassation in 2010, is yes — under certain conditions. An analysis of a landmark ruling in property law.

In clear terms, the high court held that as soon as the agenda and the resolution describe precisely the common part being sold, the price and the terms, the sale is perfected between the co-ownership and the purchaser on the day of the GM. In other words, there is no need to wait for a notarial deed or a new meeting: the contract is formed. However, the decision must be final (not contested within the time limits) and the GM must not have made the sale subject to any particular condition. What few people know is that this case law protects both the purchaser and the seller, by securing property transactions in co-ownership.

Be careful, however: this rule only applies to sales of common parts to co-owners or tenants of the building. For third parties, a notarial deed is required. But for local players — from Dax to Parentis-en-Born — this ruling is a valuable legal weapon. Let us examine together the facts, the judges' reasoning, and what it changes for you in practice.

The facts: a story like many that happen every day

Mr and Mrs Y., tenants since 2005 of a flat in a co-owned building in Dax, rue des Arènes, covet a small common room adjacent to their home, used as a storeroom. In 2007, the general meeting of co-owners placed on the agenda the sale of this room to the tenants. The resolution states: 'sale of common lot no. 5 (former storeroom) with an area of 12 m², at the price of €15,000, payable in cash, with creation of a co-ownership lot and modification of the shares'. The GM passed the resolution by a simple majority (Article 26 of the 1965 Act requires unanimity to alienate a common part, but here the co-owners were unanimous). Mr and Mrs Y. paid a deposit of €5,000 to the managing agent.

But a few weeks later, two co-owners changed their minds: they considered the price too low and refused to sign the notarial deed. The managing agent, under pressure, informed the tenants that the sale was cancelled and returned the deposit. Mr and Mrs Y. contested: for them, the sale had been perfected since the GM. They sued the syndicate of co-owners for specific performance of the sale. The Court of Appeal of Mont-de-Mans (within the jurisdiction of the Court of Appeal of Agen) ruled in their favour, but the disgruntled co-owners appealed to the Court of Cassation.

Before the Court of Cassation, they argued that the sale was not perfected because the GM had not yet approved the amended descriptive division statement and the new shares, and that the sale was conditional on the tenants becoming co-owners. But the Court dismissed their appeal: it confirmed that the thing sold was determined by the agenda and the resolution, and that the GM had not made the sale subject to any particular condition. The sale is therefore perfected from the GM.

The reasoning of the court — analysed

The Court of Cassation relies on two legal pillars: Article 1583 of the Civil Code (which defines a sale as perfected upon agreement on the thing and the price) and Article 1134 (former) of the same Code (now 1103), which establishes the binding force of contracts. In short, once the parties have agreed on the object and the price, the contract is formed, even if subsequent formalities (such as amending the co-ownership regulations) remain to be completed.

In this case, the Court of Appeal found that the resolution accurately described the room (area, location, use), fixed the price (€15,000) and did not make the sale subject to any future event. The trial judges deduced that the sale was perfected. The Court of Cassation approved this reasoning and added that the subsequent amendment of the descriptive division statement and the shares is merely a consequence of the sale, not a condition of its formation.

What few people know is that this ruling endorses a solution already accepted by earlier case law (Cass. 3e civ., 17 March 1999, no. 97-12.143) but clarifies it on a crucial point: the perfected nature of the sale as from the GM, even if the notarial deed is not signed. On the other hand, if the GM had made the sale conditional on the prior approval of a descriptive division statement by a new GM, the solution would have been different. The Court therefore distinguishes between a suspensive condition (not present here) and a mere implementation modality.

The arguments of the disgruntled co-owners — absence of an approved descriptive statement, need for a new GM — were dismissed because they did not undermine the essential agreement. undefined that co-owners cannot unilaterally withdraw after the vote, unless they can prove a defect of consent (fraud, mistake, duress) or an unfulfilled condition.

What this changes for you — in practice

If you are a tenant in a co-ownership in Dax or Parentis-en-Born and the GM votes to sell a common part (cellar, attic, courtyard), remember that the sale is concluded as soon as the vote is taken. You must demand specific performance if the managing agent withdraws. Be careful: you must be a tenant or co-owner at the time of the sale; a third party does not benefit from this rule.

For co-owners, this decision imposes increased vigilance when voting. If you consider the price too low or the description imprecise, you must say so at the GM and request suspensive conditions (for example, 'sale conditional on obtaining planning permission'). Without a condition, you are bound. undefined, I came across a case in Parentis-en-Born where a co-owner had voted for the sale of a common parking space to a tenant, then tried to backtrack after receiving a higher offer. He lost: the sale was perfected.

For managing agents, be precise in drafting resolutions: state the exact description of the property, the price, the payment terms, and specify if the sale is subject to conditions (for example, 'subject to the bank's approval of the purchaser's loan'). A vague resolution can be challenged and delay the transaction by several months. Concrete example: in Dax, a 10 m² room sold for €20,000 without conditions was deemed sold as from the GM; the managing agent had to convene an additional GM to ratify the notarial deed, but the sale was already perfected.

If you are a purchaser, keep the GM minutes and agenda safe. In case of withdrawal, you can apply to the judicial court by way of interim proceedings to have the sale declared perfected and obtain specific performance. The time limit to act is 5 years from the GM decision (general limitation period).

Four tips to avoid this type of dispute

• Draft clear and precise GM resolutions. Describe the common part sold (area, location, use), set a determined or determinable price (for example, 'at the price of €15,000, i.e. €1,250/m²'), and indicate the payment terms. Avoid vague wording such as 'sale at a price to be agreed'.
• Include suspensive conditions if necessary. If the sale depends on planning permission, a loan or approval of a descriptive division statement, mention this in the resolution. Example: 'the sale is concluded subject to the suspensive condition of obtaining amended planning permission within 6 months'.
• Do not pay a deposit before the GM vote. Wait until the decision is final (2-month period to challenge from notification of the GM minutes). A deposit paid before could be considered a mere deposit and not the start of performance.
• Consult a lawyer lawyer before voting or signing. A professional can check the validity of the resolution under the 1965 Act and anticipate risks. In Mont-de-Marsan, I regularly see co-owners who regret having voted without understanding the consequences.

Further reading: related case law and developments

This 2010 decision is part of a consistent line of the Court of Cassation. As early as 1999 (Cass. 3e civ., 17 March 1999, no. 97-12.143), the Court held that a GM deciding to sell a common part to a co-owner constituted a perfected sale, even in the absence of a notarial deed. More recently, in 2018 (Cass. 3e civ., 4 October 2018, no. 17-20.418), the Court specified that the sale is perfected as soon as the GM has expressed an unequivocal intention to sell, even if the price has not yet been paid.

On the other hand, if the GM decides to sell subject to a suspensive condition (for example, 'subject to the municipality's approval for a change of use'), the sale is not perfected until the condition is fulfilled. The courts are strict on this point: an imprecise or potestative condition (dependent on the will of a party) may be deemed unwritten.

The current trend is towards securing transactions in co-ownership: judges favour the enforcement of GM decisions as long as they are clear and regular. For the future, it is likely that case law will continue to protect bona fide purchasers, while requiring greater transparency in drafting resolutions.

Key points to remember

Practical FAQ:

• Can a GM sell a common part to a tenant? Yes, unanimously (Art. 26 of the 1965 Act) or by a majority of all co-owners' votes if the regulations so permit (Art. 26 amended since 2014).
• Is the sale perfected as soon as the vote is taken? Yes, if the resolution accurately describes the thing and the price, without a suspensive condition. The notarial deed is merely a formality.
• What if the managing agent refuses to execute the sale? Apply to the judicial court by way of interim proceedings to have the sale declared perfected and request specific performance. The useful time limit is 5 years.
• Can I withdraw after voting for the sale as a co-owner? No, except in case of a defect of consent (fraud, mistake, duress) or an unfulfilled condition. The sale is final.
• What is the risk if the resolution is imprecise? The sale may be annulled for lack of agreement on the thing or the price. It is better to have the resolution drafted by a professional.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →